CLU3M Unit 2 Rights and Freedoms PDF

CLU3M: Unit 2 Rights and Freedoms Ms. De Marco  Rights v. Freedoms Rights are something you are owed by society. Freedoms are the ability to direct your own life without unreasonable constraint or coercion.  Charter Recap Constitution Act (1...

CLU3M: Unit 2 Rights and Freedoms Ms. De Marco  Rights v. Freedoms Rights are something you are owed by society. Freedoms are the ability to direct your own life without unreasonable constraint or coercion.  Charter Recap Constitution Act (1982) Patriated the Constitution, thereby ending the need for Britain’s approval to amend it The Charter guarantees and protects fundamental rights and freedoms to all Canadians. It applies to all government actions at all levels. Entrenchment of rights Safeguards fundamental rights by protecting them from being easily changed or removed All rights outlined in the Charter are entrenched Examples include the Fundamental Freedoms, Democratic Rights, and Mobility Rights Canadian Bill of Rights (1960) Canada’s first federal law to protect human rights and fundamental freedoms Enacted under Prime Minister John Diefenbaker Only applied to federal statutes and not provincial ones Judges regarded it as an “interpretive aid” Still in effect today but was superseded by the Charter Canadian Human Rights Act (1977) Designed to ensure equality of opportunity and prohibits discrimination on the basis of age, race, gender, etc. Produced the Canadian Human Rights Commission and the Canadian Human Rights Tribunal Only covers equality rights and governs only federal jurisdictions Each province and territory has their own human rights legislation Human Rights Codes The Ontario Human Rights Code (1962) Created with the purpose of recognizing “the dignity and worth of every person by providing for equal rights and opportunities without discrimination.” Quasi-constitutional Takes precedence over any other Ontario statutes unless stated otherwise Primary aim: “The creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.” Human Rights Codes The Ontario Human Rights Code (1962) Provides that each citizen has a right to freedom from discrimination from: 1. Services, goods, and facilities 2. Accommodation 3. Contracts 4. Employment 5. Vocational or professional associations, trades, or trade unions Prejudice: A preconceived opinion of a person based on the person’s belonging to a certain group. Someone who is prejudice pre-judges another person based on that membership. These opinions are based in opinion, not fact and are often negative Stereotyping: Judging or forming an opinion of one member of a group and applying that judgement to all members of that group Labels prejudiced people apply to members of certain groups Used to ridicule and discriminate against others Discrimination: Unjust or prejudicial treatment of different categories of people, especially on the grounds of ethnicity, age, sex, or disability. Different treatment for similarly situated parties without legitimate reason Unjustified distinctions Granting and denying privileges on an arbitrary basis Intentional Discrimination: Unfair and intentional treatment of others on the basis of prejudice and stereotype Unintentional Discrimination: Actions that appear to be neutral but have an discriminating effect against most members of a group Unequal Access to Voting Rights Indigenous Suffrage Pre-1867: Legislation (outside of British Columbia and Nova Scotia) did not explicitly deny Indigenous peoples the right to vote, but there were a variety of qualifications for voters: age, British citizenship, ownership of specified properties, and tax payment If an Indigenous person gave up their status, they would earn the right to vote; so long as they met the pre-existing qualifications 1867 - 1938: The federal right to vote was determined by provincial franchise requirements; disenfranchisement at the provincial level also meant disenfranchisement at the federal level Section 86.1 of the Indian Act stated that “any Indian who received a university degree or became a medical doctor, lawyer or clergyman, was automatically enfranchised.” Unequal Access to Voting Rights Indigenous Suffrage Electoral Franchise Act, 1885: Introduced by PM John A. Macdonald and remained in effect until 1898 Extended the right to vote to all Indigenous peoples in certain provinces and under certain conditions; an Indigenous person had to meet the same requirements imposed upon British subjects 1942: A House of Commons Special Committee determined that the most neglected group of people in Canadian society was Indigenous peoples The Special Joint Committee on the Indian Act, 1946: Established by Parliament; testimonies were heard from Indigenous leaders Indigenous opinion was divided on acquiring the federal vote The goal of Indigenous policy was recast from assimilation to integration. The Committee recommended that Indigenous peoples be allowed to vote in federal elections Unequal Access to Voting Rights Indigenous Suffrage Joint Committee of the Senate and House of Commons on Indian Affairs, 1959 Established by PM John Diefenbaker, longtime critic of previous Indigenous legislation March 31, 1960: portions of Section 14(2) of the Canada Elections Act were repealed in order to grant the federal vote to status Indians; First Nations people could now vote without losing their status Indigenous Women’s Suffrage Marrying-out’ policy: “Indigenous women with Indian status who married non-status men were involuntarily enfranchised and lost their rights and privileges as band members, as did any of their children” Status for Indigenous women was initially determined by their fathers and then by their husbands Bill C-31: reinstated more than 100,000 Indigenous women and their children, as well as others who had been involuntarily enfranchised Andrews v. Law Society of British Columbia, 1 S.C.R. 143  The respondent Andrews, a British subject permanently resident in Canada met all the requirements for admission to the British Columbia bar except that of Canadian citizenship. His action for a declaration that that requirement violated s. 15(1) of the Canadian Charter of Rights and Freedoms was dismissed at trial but allowed on appeal. Kinersly, an American citizen who was at the time a permanent resident of Canada articling in the Province of British Columbia, was added as a co-respondent by order of this Court.  The constitutional questions before this Court dealt with: (1) whether the Canadian citizenship requirement for admission to the British Columbia bar infringed or denied the equality rights guaranteed by s. 15(1) of the Charter; (2) if so, whether that infringement was justified by s. 1.  Held: Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; its focus is on the application of the law. No problem regarding the scope of the word "law" arose in this case because legislation was under attack. The words "without discrimination" in s. 15 are crucial.  Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. Generally, the principles applied under the Human Rights Acts are equally applicable to questions of discrimination under s. 15(1). However, the Charter requires a two-step approach to s. 15(1). The first step is to determine whether or not an infringement of a guaranteed right has occurred. The second step is to determine whether, if there has been an infringement, it can be justified under s. 1.  The two steps must be kept analytically distinct because of the different attribution of the burden of proof; the citizen must establish the infringement of his or her Charter right and the state must justify the infringement.  The two steps must be kept analytically distinct because of the different attribution of the burden of proof; the citizen must establish the infringement of his or her Charter right and the state must justify the infringement.  The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals. These words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage. Given that not all distinctions and differentiations created by law are discriminatory, a complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit of the law but must show in addition that the law is discriminatory.  A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, infringes s. 15 equality rights. Section 42 of the Barristers and Solicitors Act is such a rule. Citizenship is typically not within the control of the individual and is, at least temporarily, a characteristic of personhood which is not alterable by conscious action and which in some cases is not alterable except on the basis of unacceptable costs. Non- citizens are a group of persons who are relatively powerless politically and whose interests are likely to be compromised by legislative decisions.  Citizenship, while properly required for certain types of legitimate governmental objectives, is generally irrelevant to the legitimate work of government in all but a limited number of areas. Legislating citizenship as a basis for distinguishing between persons, here for conditioning access to the practice of a profession, harbours the potential for undermining the essential or underlying values of a free and democratic society embodied in s. 15. Legislative conditioning on the basis of citizenship may, in certain circumstances, be acceptable in the free and democratic society that is Canada, but that legislation must be justified by the government under s. 1 of the Charter.  The objective of the legislation was not sufficiently pressing and substantial to warrant overcoming the rights protected by s. 15. Given that s. 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately an onerous one. Assenting Arguments: Per Dickson C.J. and Wilson and L'Heureux-Dubé JJ.: The legislation at issue was not justified under s. 1. The proportionality test was not met. The requirement of citizenship is not carefully tailored to achieve the objective that lawyers be familiar with Canadian institutions and customs and may not even be rationally connected to it. Most citizens, natural-born or otherwise, are committed to Canadian society but that commitment is not ensured by citizenship. Conversely, non-citizens may be deeply committed to our country. Even if lawyers do perform a governmental function, citizenship does not guarantee that they will honourably and conscientiously carry out their public duties: that is a function of their being good lawyers, not of citizenship. Assenting Arguments: Per La Forest J.: While in general agreement with McIntyre J. about how the legislation must be approached under s. 1 in balancing the right infringed by the legislation against its objectives, the legislation fails to meet the test of proportionality. Citizenship neither ensures the objectives of familiarity with Canadian institutions and customs or of commitment to Canadian society. Restriction of access to the profession to citizens is over-inclusive. Less drastic methods for achieving the desired objectives are available. While certain state activities may, for both symbolic and practical reasons, be confined to those who are full members of our political society, such restriction should not apply to the legal profession as a whole. The practice of law is primarily a private profession. A lawyer working for a private client does not play a role in the administration of justice requiring citizenship. Ordinary lawyers are not privy to government information and there are rules to restrict lawyers from obtaining confidential governmental information. Their situation differs from those involved in government policy‑making or administration.  Dissenting Arguments: Per McIntyre and Lamer JJ. (dissenting): The citizenship requirement is reasonable and sustainable under s. 1 given the importance of the legal profession in the government of the country. The measure was not disproportionate to the object to be attained. Non-citizens are encouraged to become citizens and the maximum delay imposed upon the non- citizen from the date of acquisition of permanent resident status is three years. It is reasonable to expect that the newcomer who seeks to gain the privileges and status within the land and the right to exercise the great powers that admission to the practice of law will give should accept citizenship and its obligations as well as its advantages and benefits. How do you rule? The judgment of Dickson C.J. and Wilson and L'Heureux-Dubé JJ: As my colleague points out, s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, differentiates between citizens and non-citizens with respect to admission to the practice of law. The distinction denies admission to non- citizens who are in all other respects qualified. While the citizenship requirement applies only to those non-citizens who are permanent residents, it has the effect of requiring those permanent residents to wait for a minimum of three years from the date of establishing their permanent residence before they can be considered for admission to the Bar. It imposes a burden, in the form of some delay in obtaining admission, on permanent residents who have acquired all or some of their legal training abroad. I agree with my colleague that a rule which bars an entire class of persons from certain forms of employment solely on the ground that they are not Canadian citizens violates the equality rights of that class. I agree with him also that it discriminates against them on the ground of their personal characteristics, i.e., their non-citizen status. I believe, therefore, that they are entitled to the protection of s. 15.  The first hurdle to be crossed in order to override a right guaranteed in the Charter is that the objective sought to be achieved by the impugned law must relate to concerns which are "pressing and substantial" in a free and democratic society. Given that s. 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately an onerous one. The Court must consider the nature of the right, the extent of its infringement, and the degree to which the limitation furthers the attainment of the legitimate goal reflected in the legislation.  To my mind, even if lawyers do perform a governmental function, I do not think the requirement that they be citizens provides any guarantee that they will honourably and conscientiously carry out their public duties. They will carry them out, I believe, because they are good lawyers and not because they are Canadian citizens. In my view, the reasoning advanced in support of the citizenship requirement simply does not meet the tests in Oakes for overriding a constitutional right particularly, as in this case, a right designed to protect "discrete and insular minorities" in our society. I would respectfully concur in the view expressed by McLachlin J.A. at p. 617 that the citizenship requirement does not "appear to relate closely to those ends, much less to have been carefully designed to achieve them with minimum impairment of individual rights".  I would dismiss the appeal with costs. I would answer the constitutional questions as follows: Q. (1)Does the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 infringe or deny the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms? A. Yes. Q. (2)If the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 infringes or denies the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms, is it justified by s. 1 of the 1867 - 1938: Canadian Charter of Rights and Freedoms? The federal right to vote was determined by provincial franchise requirements; disenfranchisement at the provincial level also meant disenfranchisement at the federal level A. No. Section 86.1 of the Indian Act stated that “any Indian who received a university degree or became a medical doctor, lawyer or clergyman, was automatically enfranchised.” The United Nations Main Bodies of the UN: The General Assembly Deliberative, policymaking, and representative organ of the UN Only body with universal representation Makes decisions on matters of peace and security, admission of new members, and budgetary matters with a two-thirds majority GA President serves a one-year term The Security Council Responsible for maintaining peace and international security 15 member states (5 permanent, 10 non-permanent), 1 vote each Dispute settlement Rotating monthly presidency Main Bodies of the UN: International Court of Justice Judicial organ of the UN, only organ not in New York Settles legal disputes submitted by states and gives advisory opinions on legal questions Functions in accordance with its statute The Secretariat Secretary-General and international UN staff members responsible for carrying out the day-to- day work of the UN Universal Declaration of Human Rights Adopted by the UN General Assembly in 1948 Outlines fundamental human rights that are to be universally protected Serves as a common standard for all nations Is not legally binding Consists of 30 articles that cover a wide range of rights, such as: Article 3: Right to life, liberty, and security Article 5: Freedom from torture and degrading treatment Article 7: Right to equality before the law Article 18: Freedom of thought, conscience, and religion Article 26: Right to education  ADDRESSING HUMAN RIGHTS COMPLAINTS STEP 1: Identify the violation STEP 2: Determining the appropriate forum for resolution STEP 3: Obtaining representation (if needed) STEP 4: Presenting the case Why are there different forums for the resolution of human rights violations? How is the appropriate forum for a case determined? Resolving Human Rights Disputes Tribunals and Commissions Tribunal: A specialized body established to hear and adjudicate disputes related to human rights issues. A tribunal provides a more accessible and less formal venue for resolving complaints of discrimination or violations of human rights, compared to traditional courts. Commissions: Government bodies tasked with promoting and protecting human rights, often serving as the first point of contact for individuals who believe their rights have been violated. They operate at both the federal and provincial/territorial levels, each with its own mandate and structure. Resolving Human Rights Disputes Acknowledgements and Apologies Acknowledgment: A) A formal statement made in front of an official person (notary public) confirming that someone is signing a legal document. This verifies that the signatory understands what they are signing and doing so willingly B) Acceptance of the truth or existence of something Apology: An expression of sympathy or regret; an oral or written statement that a person is sorry or any other words or actions indicating contrition or commiseration Government Apology to Former Students of Residential Schools | The Canadian Encyclopedia Conflicts and Disputes Conflicts and Disputes section 1: reasonable limits “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 33: The Non-Withstanding Clause AKA “the override clause” or the “nuclear option” Allows federal/provincial governments to temporarily override or bypass certain Charter rights Applicable to sections 2 and 7-15 only Politically difficult; very rarely invoked Check on constitutional supremacy 5 year renewable term reasonable limit Anti-Terrorism Act (Bill C-36): Direct response to the 9/11 attacks Made changes to the Criminal Code, the Official Secrets Act, the Canada Evidence Act, etc. Granted broader powers to police and national security departments, increased surveillance Impacts Section 2, Section 11, and privacy under Section 7 Non-withstanding Minority Language Rights and Bill 101: Invoked by Quebec to enforce the Charter of the French Language (Bill 101) Challenged via Section 2 rights but Quebec used the NWC to maintain their stance and the law Youth Criminal Justice Act Applicable to those who are or appear to be between the ages of 12 and 17 years old and have been alleged to have committed an offence Primary Aims: i) prevent crime by addressing the circumstances underlying a young person's offending behaviour; ii) rehabilitate young persons who commit offences and reintegrate them into society, and; iii) ensure that a young person is subject to meaningful consequences for his or her offence, in order to promote the long-term protection of the public. Youth Criminal Justice Act Emphasizes rehabilitation and reintegration, fair and proportionate accountability, enhanced procedural protection and timely intervention and enforcement Special Considerations: Reduced sentencing Mandated rehabilitation for violent or deadly offences Custody  Considering Limitations Protecting Public Order National Security and Public Safety Harm Prevention